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Midland Funding Reply to Complaint w/ Counter Suit

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I have NOT sent this and looking for advice if I have a case and if I need to adjust it:

STATE OF WISCONSIN, CIRCUIT COURT,

MILWAUKEE COUNTY

Case No: xxxxxxxxxxx

Plaintiff,

MIDLAND FUNDING LLC

BY ITS SERVICING AGENT

MIDLAND CREDIT MANAGEMENT INC

Vs

Defendant,

John Doe

address

ANSWER OF THE PLAINTIFF

Defendant, appearing pro se, for its reply to the Complaint naming MIDLAND FUNDING LLC Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

ANSWERS

1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

2. Admit.

3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

6. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

7. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

DEFENSES

1. Midland Funding LLC has not proven that they are authorized and licensed to collect claims for others in the State of Wisconsin, or solicit the right to collect or receive payment of a claim of another.

2. Midland Funding LLC has not proven that they were retained by CHASE BANK USA NA/HERITAGE FIRST USA as it’s representative in this matter.

3. Midland Funding LLC has not serve a "notice of Right to Cure" as stated Sec. 425.104 & 105

4. Midland Funding LLC has not proven that CHASE BANK USA NA/HERITAGE FIRST USA is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of CHASE BANK USA NA/HERITAGE FIRST USA with all of the original creditor’s rights and privileges intact.

5. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

6. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

7. Midland Funding LLC has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account or PROVIDE STATEMENTS SHOWING ALL TRANSACTIONS BEING SUED FOR or DETAIL ALL STATEMENTS OF THE ACCOUNT BACK TO ZERO as stated in The Wisconsin Consumer Act, under Wis. Stat. § 425.109(2)

8. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

9. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

10. Defendant reserves the right to submit additional counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

COUNTERCLAIM

I have a claim(s) against the plaintiff and demand judgment against the plaintiff for $1,000 on each of the following violations, per occurance, plus interest, costs, attorney fees, if any, and such other relief as the court deems proper.

1.Acting as both the “Purchaser” and ‘Assignee’. FDCPA Gearing v. Check Brokerage Corp 233 F.3d 469 (7th Cir. 2000)

2.Trying to “Re-Age” this account in hopes of keeping the negative information on my credit report longer.FCRA Section 605 © Running of the reporting period

3.Failure to validate the debt while continuing to pursue collection. FDCPA Section 809(B)

4.Failure to validate the debt while continuing to report it to the credit bureaus. FDCPA Section 809(B)

Midland Credit Management received multiple request for VALIDATION of the account with specific requests that had been mearly ignored. Letters were sent 3/18/11, 4/6/11 & were received by Midland Credit Management on 3/21/11, 4/8/11. VALIDATION was not supplied in accordinance with The Wisconsin Consumer Act, under Wis. Stat. § 425.109(2)

By the Defendant acting pro se.

Dated: 5/10/1

John Doe

By: _______________________________

John Doe, Defendant

Address & Phone

I have NOT sent this and looking for advice if I have a case and if I need to adjust it

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When you DV'd Midland, was it after they sent you a 30 day notice to validate?

Defense #2:

Midland was not retained by Chase. Midland bought the debt. The defense you are looking for is Lack of Standing - Plaintiff has not provided a chain of ownership and, therefore, has not proven legal standing to sue.

Defense #4:

Chase is not suing you. Midland is the Plaintiff.

Your last counterclaim won't work. They can continue to report to CRAs as long as they report the debt as disputed.

How did they reage the debt?

Edited by BV80

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Defense Number 6 should always be Defense Number 1. No need to allege anything about Chase. Midland is claiming to be the owner. Demand that Midland provide an authenticated bill of sale from Chase to all other purchasers of the debt ending up in Midland's hands. This would require specifically your name and account number being identified in each bill of sale with authenticated signatures. That scenario will never happen. Plus any affidavits from Midland's alleged Attorneys are totally worthless as evidence.

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FDCPA is 1,000 per action plus whatever you might be able to claim under the State consumer protection rules. I didn't get any traction by just listing the offenses on the pleading, they noticed when I wrote up the cross claim as a complaint and attached an affidavit to it though.

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Thanks for the feedback. I will get additional information from a few of your posts when I get home and take a look at the documentation.

Regarding the coutersuite for my last claim they are listed as disputed by creditor on 1 of 3 CRA. One is listed as Credit Account still and the other is reporting as disputed by consumer.

It thought I might still have something here.

The accounts are reported with the CRA as being opened on 3 different dates. 1/01/2001, 1/04/2011, 1/01/2011. I believed this would reage the account for the 2 posted this year but I may be wrong. The other one would be against the SOL if I'm correct in my thinking and it was accurate.

I also should move defence #6 to #1? Would I need to reword it?

One of you mentioned that I DO NOT need to mention CHASE. Does that mean I should remove CHASE from all verbaige in my reply?

Defense #4 Do I just completly strike this from my defense?

#2 (Changing to) Plaintiff has not provided a chain of ownership and, therefore, has not proven legal standing to sue.

I REALLY appreciate all of your advice! It has already been such a big help.

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The accounts are reported with the CRA as being opened on 3 different dates. 1/01/2001, 1/04/2011, 1/01/2011. I believed this would reage the account for the 2 posted this year but I may be wrong. The other one would be against the SOL if I'm correct in my thinking and it was accurate.

Chances are, those are the dates Midland began reporting the debt. It doesn't reage the debt, because it has nothing to do with the date of 1st delinquency or the date of last payment.

I also should move defence #6 to #1? Would I need to reword it?

No, it's worded just fine.

One of you mentioned that I DO NOT need to mention CHASE. Does that mean I should remove CHASE from all verbaige in my reply?

I wouldn't mention Chase, because Chase is out of the picture.

Defense #4 Do I just completly strike this from my defense?

Yes

#2 (Changing to) Plaintiff has not provided a chain of ownership and, therefore, has not proven legal standing to sue.

Lack of Standing. Plaintiff has not provided...etc., etc.

Regarding your request for validation, when you DV'd Midland, was it after they sent you a 30 day notice to validate? Did you DV within that 30 day period?

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Regarding your request for validation, when you DV'd Midland, was it after they sent you a 30 day notice to validate? Did you DV within that 30 day period?

Yes! All of my replies were well within the 30 days. They were more like 3-9 days.

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I'll be honest...I'm not sure if your counterclaims are valid or not. If the continued collection activity is because they filed suit. I'm not sure that will stand. Someone else will have to respond on the case law. I read it, but I'm not sure it applies here. To check on that, you should contact a consumer attorney and ask about it.

I'm not trying to bring you down. You just need to be very sure about counterclaims.

I believe you stated they haven't provided any evidence. If your rules allow, send a Request for Production of Documents and a Request for Admissions. Any evidence they send must authenticated by the OC. If they don't send an affidavit from the OC authenticating the evidence, it's hearsay. Read your court's Rules of Evidence concerning hearsay and business records.

It's nice to have counterclaims, but you don't have to have them to win.

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Filing suit rather than responding to DV can go either way. There is case law that says it is a violation and others that say it is not. However I believe the numbers are growing on the violation side.

This is Midland and since you are fighting them, they will fold up their little tent and go away. With a counter claim they are going to fold up their tent much sooner and be more likely to accept with predjudice. Otherwise Midland usually waits until the day of court to dismiss.

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I am assuming Midland filed an affidavit to the complaint? The affidavit may be grounds in itself to bring a claim.

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Yes! There was an Afidavit.

Regarding defence #4

Midland Funding LLC did not serve a "notice of Right to Cure" 15 days prior to suit as stated Sec. 425.104 & 105

I only insirted it because of a thread I had come accross by Trueq who has worked in WI and against Kohn Law firm, there representative. He said at this link:

www .creditinfocenter.com/forums/there-lawyer-house/284690-great-news-consumers-wi.html (You need to remove the space after www as I do not have enough post to post a link)

Would you still suggest removing it? If not does it just need to be reworded?

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Below is the updated version of my answers to the complaint. I have kept the all the counter suits even if they aren't strong because unless you try you won't win. Is there anything negative that could happen by keeping these?

I also have removed a few defences. All the ones that had Chase listed. I reworded the previous #4 now #3 because of something I read. Stated in previous post.

Please review and provide feedback at your discression. Much appreciated.

MILWAUKEE COUNTY

Case No: XXXXXXXXX
Plaintiff,

MIDLAND FUNDING LLC
BY ITS SERVICING AGENT
MIDLAND CREDIT MANAGEMENT INC

Vs

Defendant,
JOHN DOE
HICK LANE
MILWAUKEE, WI 53202

ANSWER OF THE PLAINTIFF
Defendant, appearing pro se, for its reply to the Complaint naming MIDLAND FUNDING LLC Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

ANSWERS
1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.
2. Admit.
3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.
4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.
5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.
6. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.
7. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

DEFENSES
1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.
2. LLC Lack of Standing - Plaintiff has not provided a chain of ownership and, therefore, has not proven legal standing to sue.
3. Midland Funding LLC did not serve a "notice of Right to Cure" 15 days prior to suit as stated Sec. 425.104 & 105
4. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.
5. Midland Funding LLC has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account or PROVIDE STATEMENTS SHOWING ALL TRANSACTIONS BEING SUED FOR or DETAIL ALL STATEMENTS OF THE ACCOUNT BACK TO ZERO as stated in The Wisconsin Consumer Act, under Wis. Stat. § 425.109(2)
6. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).
7. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.
8. Defendant reserves the right to submit additional counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

COUNTERCLAIM

I have a claim(s) against the plaintiff and demand judgment against the plaintiff for
$1,000 on each of the following violations, per occurance, plus interest, costs, attorney fees, if any, and such other relief as the court deems proper.

1.Acting as both the “Purchaser” and ‘Assignee’. FDCPA Gearing v. Check Brokerage Corp 233 F.3d 469 (7th Cir. 2000)
2.Trying to “Re-Age” this account in hopes of keeping the negative information on my credit report longer.FCRA Section 605 (c) Running of the reporting period
3.Failure to validate the debt while continuing to pursue collection. FDCPA Section 809(
4.Failure to validate the debt while continuing to report it to the credit bureaus. FDCPA Section 809(

Midland Credit Management received multiple request for VALIDATION of the account with specific requests that had been mearly ignored. Letters were sent 3/18/11, 4/6/11 & were received by Midland Credit Management on 3/21/11, 4/8/11. VALIDATION was not supplied in accordinance with The Wisconsin Consumer Act, under Wis. Stat. § 425.109(2)


By the Defendant acting pro se.

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Yes! There was an Afidavit.

Regarding defence #4

I only insirted it because of a thread I had come accross by Trueq who has worked in WI and against Kohn Law firm, there representative. He said at this link:

www .creditinfocenter.com/forums/there-lawyer-house/284690-great-news-consumers-wi.html (You need to remove the space after www as I do not have enough post to post a link)

Would you still suggest removing it? If not does it just need to be reworded?

Originally, Defense #4 was not about a right to cure. I was referring to:

4. Midland Funding LLC has not proven that CHASE BANK USA NA/HERITAGE FIRST USA is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of CHASE BANK USA NA/HERITAGE FIRST USA with all of the original creditor’s rights and privileges intact.

That's when I told you that Chase was not the one suing you.

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I think your affirmative defenses are short. If you fail to list them in your response then they may be waived. You only are really listing about 4 defenses. 1 and 4 will probably not stand. 6 and 7 are not defenses. You may want to review affirmative defenses more and see if you can make a further argument. Without knowing the complaint or attachments it is hard to point any out.

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Actually, though I would not exclude it, number 4 Statute of Frauds will probably not apply here either.

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This will help a bunch. I am in Texas, and just got served from Midland. I actually DV'ed them when I got a notice in January. They ignored it and sued me 2 months later. Any thoughts on whether to countersue. I have heard that sometimes it forces thier hand into hiring a better attorney to handle the case.

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OK, so I had my official answer to the complaint drafted with defences and counter claims all set to file. Went to the court house and was informed I don't need to file a responce until courtdate. "Small claims", I thought this might be the case.

I wanted to find out if their would be any benefit of filing a responce before court date or if I just show up on the date with my written responces and turn it in then.

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